PART I: Selected Factors Facilitating Impunity for International Crimes Through the European Court of Human Rights

Abstract

In Part 1 various key cases are discussed which concern the contentious issue of the legal legitimacy of the notion of universal civil and universal criminal jurisdiction and whether one or both such jurisdictions is established under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and customary international law. Such absolute universal jurisdiction or, in some instances, a restricted version of universal jurisdiction allows for legal action to be brought in the national courts of a State other than that in which the offences occurred and against persons who are not the nationals of the forum State. Such legal actions include but are not limited to civil actions for damages, extradition requests regarding foreign nationals, and warrants for the arrest of foreign nationals accused of having committed international crimes outside the forum State. Some argue such jurisdiction is not barred by any sort of immunity and under the less restrictive notion of universal jurisdiction the legal action in the forum State may be initiated whether or not the accused has ever set foot in the jurisdiction of the forum State and regardless the nationality of the victim. Issues concerning the boundaries of State sovereignty, what constitutes an ‘official’ act by an agent of the State, the limits of personal immunity granted to sitting or former heads of State and other high officials or diplomats are addressed. The European Court of Human Rights approach to the issue of universal jurisdiction is shown to contribute to a lack of State accountability and ultimately, in many instances, to complete impunity for individual perpetrators of international crimes such as torture and war crimes.